Is SCOTUS Preparing A Third Strike Against The Executive?

Arguably, Citizens United was the first strike, using the First Amendment free-speech clause to remove virtually all limits on political campaign contributions by corporations. It seems a strange ruling to me, in that it grants free-speech rights to virtual persons that can live forever and often have and can spend more money than any living human individual.

The second strike was Burwell v. Hobby Lobby, another odd bird that effectively grants First Amendment freedom of religion to corporations, allowing them to impose the corporate owner's religious constraints on medical insurance benefits offered to employees, e.g., refusing to cover the cost of abortion.

And now the apparent third strike: the Court appears to be taking direct aim at the constitutionally listed powers of the Executive branch. As Tierney Sneed at TPM states the matter:

It was not unexpected that the Supreme Court took up a case Tuesday challenging the Obama administration's executive actions on immigration. But it was somewhat of a surprise that in doing so, the court asked to be briefed on whether the memo outlining the administration's policy “violates the Take Care Clause of the Constitution” -- a question which was not addressed directly in lower court decisions and not among those the U.S. government included in its petition.

...

The surprise is not that the Supreme Court is a political entity; that was true of the very first Supreme Court seated. If there is a surprise, it is that today's Court (possibly influenced by Chief Justice John Roberts) is requesting from trial courts (or other lower courts whose cases SCOTUS ultimately hears on appeal) information on issues not introduced by either side at trial or on appeal, issues to allow archconservative Roberts & Co. to set particular precedents they desire on issues never raised in trial or earlier appeals.

Our nation's founders framed the Judiciary as the weakest branch among the three. The Judiciary, starting immediately with John Marshall, set about rectifying that disparity. Today the Roberts Court, by applying all kinds of powers assumed over the centuries, as well as a few tricks the founders never imagined, can be, when it wishes, vastly more powerful than the Congress or the President. I am quite certain that if a Republican takes the presidency this year, the Roberts Court will find and hear some case that allows them to remove the hobbles they have been placing and continue to place on Executive branch power while Obama is president.

Do these rulings serve the cause of justice? C'mon, gimme a break...

Your Hobby Lobby Reading For Today

• masaccio at FDL, The Political Decision in Hobby Lobby (be sure to read the comments)
• Leonard Pitts, Jr. at Miami Herald, Bad day for women’s rights, reproductive health

This decision will impact, wholly negatively, literally millions of women of reproductive age. And that's not counting its influence on the Supreme Court's future interpretation of the distinction between "freedom of religion" and "an establishment of religion." Apparently, to Just‑Us Roberts, Alito, Kennedy, Scalia and Thomas, surprisingly along with Just‑Us Breyer, the former concept perversely equates to the latter. Handmaid's Tale, here we come.

Highlights From Ginsburg's Dissent In Hobby Lobby

Janet Allon at AlterNet offers a list of 10 such highlights, and since I can't begin to approach Justice Ginsburg's clarity of thought and sharply expressive prose, I'll simply refer you to Allon's article, which contains the following highlights:

1. "Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today's decision."
2. "Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude."
3. "Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community."
4. "The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers' beliefs access to contraceptive coverage."
5. "Any decision to use contraceptives made by a woman covered under Hobby Lobby's or Conestoga's plan will not be propelled by the Government, it will be the woman's autonomous choice, informed by the physician she consults."
6. "It bears note in this regard that the cost of an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage." *
7. “Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence.”
8. “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
   
9. “Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work?”
10. “The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for ‘it seems unlikely’ that large corporation ‘will often assert RFRA claims.’”

* Quoting Sid Kirchheimer at WebMD:

Although both have upfront costs of about $500 in product and medical costs, they are the cheapest contraception types over a five-year period, when the financial price of a possible unwanted pregnancy is also calculated, says lead researcher James Trussell, PhD, a Princeton University economist and director of the school's Office of Population Research.

I wish to goodness at least one of five cranky, ideologically obsessed people had read her dissent (scroll to p. 60) with better attention... and from the real world the rest of us inhabit.

ADDENDUM: Cecile Richards, president of Planned Parenthood, daughter of the last honorable governor the State of Texas had, is ready to give new meaning to terms like "unrest," "unruly," "civil disobedience," etc. You go, Cecile! Be sure to have cameras rolling (do digital cameras and videocams "roll"?) everywhere you go...

Supremes On Hobby Lobby (And Similar Corp's, Partnerships, Etc.): F*** The Law, You Can Do Anything Your Corporate Religious Beliefs Tell You

From Sahil Kapur of TPM, the decision was, of course, 5-4, along partisan lines. Justice Ginsburg says the Court has "wandered into a minefield"; she is right, of course, but it's worse than that: the Court has already tripped a mine and the explosion has started. Here's an excerpt from Justice Ginsburg's opinion (please don't stop here; read her entire opinion):

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. The Court's determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.

Justice Scalia
Father Antonin

Ginsburg also noted that "... the case, brought by the Christian owners of the retail chain Hobby Lobby, marks the first time the U.S. Supreme Court has exempted a for-profit corporation from a generally applicable law on religious grounds."

As best I recall, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," i.e., Congress cannot declare an official religion for the nation, nor can they prohibit people from worshiping as they damned well please. But as of today, what Congress may not do, business entities may freely do, imposing the practical consequences of their own religious beliefs on their employees, even in defiance of laws passed by Congress... and the Supreme Court will back them up as they do this.

What's next? How long before Hobby Lobby (and similar businesses) send around a general memo that all employees who want to keep their jobs will appear Sunday morning at Holy Smokes Catholic Church for the early service? And when they do, will the Supreme Court back the companies, on the grounds that the RFRA is violated when employees attend a different church, or no church at all?

Is anyone else reminded of Atwood's The Handmaid's Tale? Do not, for even a moment, think "it can't happen here"!

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AFTERTHOUGHT: a bit more reading and contemplating led me to ask and answer this question:

Q: What makes Burwell v. Hobby Lobby like Bush v. Gore?
A: Both rulings contain explicit self-limiting text that restricts the use of the decision to the current case only, i.e., neither can be used as precedent to rule on cases evoking similar underlying legal principles... because, says the Court, there are no underlying principles to be invoked.

Bush v. Gore:
[from the Court's Opinion]

• Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Burwell v. Hobby Lobby:
[from the Court's Syllabus]

• This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandate e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

[from the Court's Opinion]

• In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Let's simplify the latter a bit: the decision is NOT to be applied generally to any old insurance-coverage mandate that conflicts with an employer's religious beliefs, but rather only to the contraceptive mandate in the ACA. Why is the applicability to be thus restricted, when the entire context is virtually the same? Because we [the Court] say so, that's why.

The Court majority's duck-and-cover on the whole issue is breathtaking: their restriction of application is essentially arbitrary, but they want to be sure no one uses it as precedent in another future case... just as they did in Bush v. Gore. I am no lawyer, but if I were, I suspect I'd find this little tap-dance both incompetent and determined to effect a specific outcome to the detriment of women's health. This song-and-dance really sucks; we deserve better from our highest court.